(12 years, 11 months ago)
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The Deputy Chairman of Committees (Viscount Simon)
We resume on Amendment 55B.
Lord Dykes
My Lords, I apologise to the Deputy Chairman for being rather hasty in beginning. That was partly because of my anxiety to be brief in this important debate. I congratulate the noble Lord, Lord Radice, on proposing this new clause in his amendment. It is very important. I detect already that it has gone down well in the new atmosphere of the House. Even if the Government persist with the Bill in most of its configuration, there is a spirit and desire also to promote our membership of the European Union. I hope so, anyway.
The noble Lord, Lord Radice, has a distinguished and noble Italian ancestry. As a keen linguist myself, I am prepared to forgive him; he told me once that he did not speak Italian. However, he is an internationalist in every other sense. I had the pleasure of preceding the noble Lord, Lord Radice—I hope he had pleasure in succeeding me—as chairman of the European Movement. I was chair in the first half of the 1990s; it was the noble Lord, Lord Radice, afterwards. Even then when we spoke about these matters we often lamented the extent to which Governments of all colours—the two main parties, anyway—did not defend and promote our membership of the European Community enough. We saw that only in the days of the Edward Heath Government. To her credit, it was also partly true in the period of the Thatcher Government, particularly with the creation of the single market, but by and large it was not.
I compared this to the previous Spanish general election—there is the possibility that another will come along soon. The two great parties in that country fought a tenacious and bitter political battle on all aspects of Spanish domestic and internal policies, but not once did anybody invoke Europe as an anti-cause to win domestic votes. It is a pity that our internal politics has been bedevilled by that phenomenon, as well as by Governments not explaining a mechanism and structure that is in many ways more complicated than just a defence alliance such as NATO, although that is complicated enough. Not enough has been given over the years to doing that. We need to do that even more now because of the way in which various press organs in this country have denigrated Europe excessively.
Therefore, the words of the noble Lord, Lord Radice, should be heeded by the Government to promote a campaign. Indeed, they ought to promote a campaign to defend and explain Europe properly in the objective and neutral sense of the word. It can be done, even when there are referenda to be fought in the future. I hope there will be no referenda, but it is in those terms that one asks the Government to respond positively to this important amendment tonight.
Lord Triesman
My Lords, I welcome this amendment from my noble friend Lord Radice, whose expertise on Europe is well known in the House. Several of the speeches that have been made by Members of the Committee have reflected their own extensive knowledge of Europe and their understandable disappointment that we have been so churlish in the way that we have talked about Europe and the European project over the years. Like the noble Baroness, Lady Williams, I take the point that there are things to criticise. However, that is scarcely a reason for the trajectory on which we have embarked.
In addressing the amendment specifically, it is clear from the beginning of Clause 2 that a referendum would be launched following matters being laid before Parliament and fully debated, a decision being taken by Parliament and a treaty approved by an Act of Parliament. Clause 3 gives essentially the same sequence: Parliament takes a fundamental view, looks at it and decides that a referendum should be held because of the conditions to hold one as set out in the Act. Under Clause 6, a Minister of the Crown must start with a draft decision approved by an Act of Parliament. The referendum condition is then triggered. In all the circumstances in which a referendum condition is triggered—were one ever to be triggered—the reality is that Parliament will have reached a conclusion. Obviously, it will not have done so in secret. It will be a decision that is well known to the public as a whole. Parliament will have decided that the point at which a referendum is required has been reached.
In those circumstances it would be inconceivable that no argument would be advanced to the people who were going to vote in the referendum to account for the decisions that Parliament had taken. It would be an extraordinary set of circumstances in which that decision did not have the visible consent of the Government. If the Government had put a proposition of that kind to Parliament and it had been defeated, it would be a significant blow to any Government. It must be the case that the arguments that had been held in that forum—or forums, taking this House into account as well—would have come to a positive outcome.
I turn to Clause 13. The Electoral Commission,
“must take whatever steps they think appropriate to promote public awareness of the referendum and how to vote in it”.
In other words, it must make sure that people know the referendum is taking place and what they need to do to take part in it. Curiously, under paragraph (b), the Electoral Commission,
“may take whatever steps they think appropriate to promote public awareness of the subject-matter of the referendum”.
In short, it must make sure that everybody knows about the referendum but it may take steps to make sure that people know what the referendum is about. I make this point because if, in those circumstances, the Government or a Minister did not take steps to deal with the policy issues under discussion, it would be the most curious discussion that there had ever been before a referendum, especially if the Electoral Commission itself did not get into the theatre of argument about the subject matter. It seems to me that it is less likely to do that than the politicians who are involved in it.
There is, therefore, a huge amount of good common sense in the amendment of my noble friend Lord Radice. If you look at the specific text of the amendment, Ministers of the Crown are asked to,
“have regard to the desirability”.
This is not a monumental hurdle to have to cross. Ministers are expected to put the argument in a way that at least conveys why Parliament has taken the decisions that it has taken, and to do so in a way that is positive. Does that disbar anybody from saying, “There are issues here. We can see the following negatives”? No, of course it does not. I have no doubt that in any referendum debate people will say what they think the downside of the argument is. However, the amendment would ensure that the upside of the argument is also presented, even in a climate where a large part of the media of this country may not be sympathetic. That is probably the only route to achieving any balance in the discussion that will take place in advance of a referendum. Therefore, I welcome this amendment. One can look back and see how it links with the other clauses, and particularly how it deals with the rather conditional “may take” provision in Clause 13. In my view it would ensure that the argument was well made.
Having made that rather narrow point about the purpose of this amendment and how it would operate against the background of a parliamentary decision, I assert that in a generally extremely sceptical climate it can do no harm whatever to argue the case for the benefits of the European Union in a positive way. No doubt some Members of your Lordships' House do not believe that there are any positive benefits, or that they are so marginal that they should not be referred to because it is a waste of breath. However, a good many more of us believe that there is a very good and strong case to be made in favour of the European Union, and that it is sensible that it is made, as this amendment would ensure.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)
My Lords, I was going to begin my comments by congratulating the noble Lord, Lord Radice, on the very sensible and balanced way in which he put his case, although his peroration slightly took off the ground towards the end of his remarks, but perhaps that is the nature of perorations. However, as the debate has gone on, I have begun to share the sentiment expressed by my noble friend Lady Williams that the situation is sad in a sense, although I suspect that I disagree somewhat with my noble friend on how the EU should develop in the 21st century and be made fit for purpose, where the great trends should go and how this country should reinforce them. Nevertheless, I agree with her that all the old polarities of debate have prevailed for far too long. Over the past decade or so, one has needed to see emerge a new and much more positive British presentation and role than we have seen. That is a matter of regret.
The Government have no difficulty in supporting the main sentiment behind this amendment. We are members of the European Union. If we are members of organisations such as the massive and amazing European Union, it would be absurd to do anything short of making the very creative best we could of that. Therefore, the noble Lord, Lord Radice, makes an important point about the need for the Government to be a more vocal and effective advocate of the European Union of which we are members, given the way that the world is shaping. This applies also to other great bodies in the world of which we are members. I am sure he will join me in saying that we need to do better than the efforts of previous Administrations in our approach to this vital task. Indeed, the noble Lord said as much. We should do so by explaining more clearly how good and positive EU membership is part of our overall adjustment to a totally changed world landscape in which major markets are growing up outside Europe and in which Europe and the European Union, including this nation, are going to have to compete with increasing vigour. We need to ensure that the European Union is understood to be, and is seen as, a force for good. We want people to understand that the European Union, and our membership of it, has been, and can be, a force for good. We need to improve the effectiveness—this is slightly off the brief—of the EU’s own voice. Many of us feel that sometimes in recent years that voice has not been quite so effective and focused as it should have been. We seek to present positively to the British people the benefits of these activities and our membership of the Union. The coalition is doing that. Indeed, all Governments should do so as a matter of course into the future.
Lord Davies of Stamford
I put it to the Minister that this Bill will be seen by our partners on the continent of Europe and in Ireland as an example of terrible British negativity about the European Union. That is quite the wrong spirit in which to negotiate with friends and partners to defend the national interest and to achieve successful outcomes from difficult and complex negotiations. What do the Government propose to do to try to persuade our European partners that, despite the evidence of this Bill, the British Government are positively committed to making a great success of our membership of the EU, and to continuing to build up and strengthen the institutions of the Union?
Lord Howell of Guildford
I welcome the noble Lord back to our debate although I am not sure that I welcome the spirit of his contribution. He has certainly made a very lively contribution to previous debates and we missed him earlier this evening. However, his premise is wrong. We have clear indications that there are no difficulties. Jean-Claude Piris, the former head of the Council’s legal service in Brussels, has commented that he sees no difficulties with Clause 18, and that he also has no difficulties with the thrust of the Bill. We have checked with people around the European Union and we are not getting the picture that the noble Lord talks about. Of course, it depends who you talk to. If you find people who support your views, that will reinforce your argument as you can then say, “These people support my views”. However, I assure the noble Lord that throughout Europe there is a real desire on the part of different countries, with their different models and different ways, to seek to enhance the transparency, accountability and public support for the European Union, and to do it in ways not dissimilar to ours—which is to say that this great Union has all the competences it needs and can go forward in a whole range of areas. It does not need to draw new powers from the nation states through treaty changes, competence transfers or power transfers.
All around Europe there is a strong sentiment in that direction. It is a pro-European sentiment and I do not think that it does at all what the noble Lord says. On the contrary, this spirit shows that we are trying to make the architecture—I hope an enduring architecture; and we will debate that later—for a more democratically based Europe that is soundly build on a popular consensus, instead of one that is regarded with hostility and suspicion.
Lord Radice
This has been a good debate. We have heard a lot of views, some of which have been predictable, and others that have perhaps been less so. I should like to take up two or three points before I conclude.
The noble Lord, Lord Blackwell, said that he hoped that I was not arguing for propaganda. Of course I am not. I am arguing for the facts, and that requires a balance. Of course there is a cost in our membership but, as the Commercial Secretary to the Treasury said, the cost is considerably outweighed by the benefits. I should like that to be argued out, and to that extent I support the case for costs and benefits to be set out.
At the moment, the debate is unbalanced because there is no strong pro-European voice, and we need to restore that balance because it is not being heard. That is why, when moving the amendment, I put the accent on the positive. We were told by members of UKIP that the Government have no place in this argument. Of course the Government have a place in the argument. They are our Government. We are members of the European Union and we have been members for nearly 40 years. As the noble Lord, Lord Howell, said, it is up to members of the Government to put the case—and it is entirely right that they should do so.
I thank my noble friend Lord Triesman for making an even better case for my amendment than the case I made. He made a subtle and excellent case. I accept that this may be an obligation that should not be in statute but, frankly, I would not have put my case in the way that I did if I had not felt that we in this country faced a serious problem, whereby we are a member of a great Union that neither we nor our Government argue for. I included my own Government in my strictures.
I was pleased that the noble Lord, Lord Howell, put the case in general terms for our membership of the European Union. He rightly said that our case needs refining and developing, as does the European Union. I should like him to make a major speech on the issue, and I very much look forward to hearing it when he has finished with the Bill. I want the coalition to live up to the constructive part of its agreement on Europe. We have heard all the negative bits. Let us have some of the constructive bits. That is my message.
I intend to send a copy of this debate to the Prime Minister, the Chancellor and the Foreign Secretary through the noble Lord, Lord Howell, because it is important that they know what we are saying in this House—that there is a major problem and we need to do something about it. I shall closely monitor, as all of us on this side of the argument will, the performance of the Government to ensure that they stick to the coalition agreement. We have heard a lot about the coalition agreement. Let us make sure they stick to it. I shall, for the moment withdraw my amendment, but that is not because I do not think the issue is important. It is vital.
Lord Hannay of Chiswick
“( ) This section does not alter the existing relationship between EU law and United Kingdom domestic law; in particular, the principle of the primacy of EU law.
( ) This section does not alter the rights and obligations assumed by the United Kingdom on becoming a member of the EU.”
Lord Hannay of Chiswick
My Lords, perhaps I may go slightly off-piste and thank the noble Lord, Lord Howell of Guildford, for the extremely eloquent way in which he replied to the previous debate. He gave by far the best description of what Governments should be doing to advocate our membership of the European Union. I was grateful for that. I am afraid that he slightly spoilt the record by selectively reading from the opinion of Monsieur Jean-Claude Piris, the former legal adviser to the Council, who stated, in that wonderfully oblique way that fine legal minds have when expressing themselves, that if the British Government consistently blocked decisions that required unanimity simply because they were trying to avoid a referendum at home, they could well find themselves both marginalised and accused of bad faith, because they have ratified those provisions in the treaty of Lisbon. However, that is a small point to make in comparison with my welcome for what the noble Lord, Lord Howell, said in his reply to the amendment of the noble Lord, Lord Radice.
Clause 18 is important. We have left our rather odd scenes from earlier in the day when we discussed the issues raised by the noble Lords, Lord Willoughby de Broke and Lord Pearson of Rannoch, which made me think that I had walked into a meeting of the Flat Earth Society on the day it was told that it had been discovered that the earth was round. The problem with Clause 18 is that it is, first, purely declaratory. It apparently has no legislative purpose, which is considered to be not a good way to legislate. Secondly, the clause is a bit obscure, and that is highly undesirable. Thirdly, because it is obscure, it contains certain risks whereby it may be misrepresented, become the object of judicial review, or risk other issues of that kind. To my mind, and for those who have put their names to the amendment, that is an unsatisfactory basis for legislation.
I should say straightaway that I would strongly support those who may wish to oppose the Question that Clause 18 stand part. It is a completely unnecessary part of the legislation. It does not have much to do with what the rest of the Bill is saying. I should also say that if I had to make a personal choice among the amendments that have been tabled on this clause, I would unhesitatingly choose the admirable amendment of the noble and learned Lord, Lord Mackay of Clashfern, and my noble friend Lord Kerr. I shall certainly support it at every stage of the Bill.
However, my amendment is designed to make the best of a bad job. If the Government are absolutely insistent on the text they have tabled, it is necessary to make the Bill at least a bit less obscure and open to challenge, distortion or misrepresentation—and my amendment attempts to do that. I claim no pride of ownership for it, because every word was drafted by my former colleagues in the Foreign and Commonwealth Office. Why do I say that? It is because the amendment is drawn explicitly and precisely from the Explanatory Notes that were circulated by the FCO when the Bill was first published many months ago. There is no innovation in it. Not a word is removed from the Government's text. There are merely two statements about the primacy of European law clarifying the situation, which, I suggest, ought to be in the Bill if the Government were to insist on their text—which I hope that they will not, in the face of the amendment moved by the noble and learned Lord, Lord Mackay, and those who are opposed to the clause standing part. I hope that they will agree that the clause would be greatly improved by adding the Explanatory Notes provided by the Foreign and Commonwealth Office, which are extremely limpid and clear, to the Bill. On that basis, I beg to move.
Lord Mackay of Clashfern
My Lords, in this group is Amendment 59, to which I have put my name along with distinguished colleagues, including the noble Lord, Lord Lester of Herne Hill, to whom I shall refer in a moment or two.
We have had an excellent introduction to the amendment from the noble Lord, Lord Hannay of Chiswick, and I am very grateful to him for that. My view is that Clause 18 is unnecessarily vague when it talks about “an Act of Parliament”. It states:
“It is only by virtue of an Act of Parliament that”—
and so on. The Act of Parliament that does that is the European Communities Act 1972 and its amendments, all properly described in a Bill of this kind as the European Communities Act 1972. Our amendment substitutes that absolutely clear and positive statement for the rather vague statement in the Bill. I cannot understand the advantage of vagueness in this context, when precision is possible without any difficulty.
Secondly, I do not regard this as of no value. There is a view in some quarters that when you join the European Union treaty, the legal order of the Union has the effect of making directly effective Union laws in all member states. We in this country have taken the view that it is the Act of Parliament, not the European Union order itself, that gives the Union legislators, particularly in relation to directly effective law, authority in our country. Parliament gave that authority and, as long as Parliament continues to give that authority, that is the basis on which the law is applicable in our country. There is no threat in this to the sovereignty of Parliament, as is sometimes suggested. Parliament, the sovereign Parliament, introduced that Act, and the sovereign Parliament is keeping the Act in position. That is a perfect authority for the legislation from Europe to be given its effect according to European law in this country.
The alternative view that the Union by itself has a legal order which effectively reaches down into the legal systems of member states without further legislation in the member states is, possibly, not all that different in effect from our view, except that I think that theoretically we have the right position here, and I would like to adhere to that.
The difference, although it is a rather narrow one, can have an effect, particularly in relation to the clauses which are called passerelle causes in the Lisbon treaty, where some extension of a European treaty is brought into being by the operation of those provisions. There was a debate in this House some time ago about those in relation to the ratification of the Lisbon treaty. My personal view is that in that situation, the ultimate decision would rest with the courts of this country on whether a particular treaty was binding here. The other point of view would say that the ultimate decision rests with the European Court of Justice. Therefore, Clause 18, stating our position as the basis of the constitutional arrangements for European legislation to be effective here, has importance. I would certainly not like to see it dropped, as long as it is clarified in the way that our amendment suggests.
My noble friend Lord Lester of Herne Hill, who is unable to be here tonight because of a long-standing appointment to which he was committed, was kind enough to say, having heard in advance what I was going to say, that he agreed with it. He also wanted to make the point that there was some discussion on the original Explanatory Notes about the basis on which parliamentary sovereignty has been established in this country. He wanted to say as an addition, slightly aside from the substance of the matter, but still with reference to the Explanatory Notes, that the authority for the sovereignty of Parliament in our country is the decisions of the courts, who recognise that authority. There is no possible question about that. I do not see how Parliament itself can establish its own supremacy without it being recognised by the courts of law. That is where the doctrine came from. That is the additional point that my noble friend Lord Lester would have made if he were here, and I am trying to make it for him.
Lord Williamson of Horton
When I read Clause 18, I took the view that it corresponds to what is our practice in this country, as explained by the noble and learned Lord, Lord Mackay. That approach has been confirmed in at least two judgments in the courts, as well as in our general practice and how we describe the question of the status of EU law. Why is it here? I understand that clearly. There has been considerable discussion about parliamentary sovereignty, so I understand why the Government have proposed this. Discussion in the House of Commons confirmed that concerns over those issues and whether that should be covered in statute remain. The Government have put it into statute. That does not change the substance, but it must change something, because it is here for the first time in statute; whereas before it was the practice of the courts based on the European Communities Act 1972. That is how it worked. I fully understand all that.
Here we have two amendments. One would leave the text exactly as it is but add something which comes from the Explanatory Note. That point could be looked at carefully, but it does not change Clause 18 as presented by the Government. It is not being changed; something is being added to it. The other amendment, in the names of the noble Lord, Lord Kerr of Kinlochard, and the noble and learned Lord, Lord Mackay, changes to a modest degree the text which has been put on the table. It changes it by making explicit that it is by virtue of the European Communities Act 1972 that we have recognition of availability in law of EU legislation. It is explicit on that point. It avoids the initial phrase in the Bill, which states:
“It is only by virtue of an Act of Parliament”.
It is a clarification of that point. However, it does not change the basic structure of the way in which we deal with Community legislation. We deal with it by the authority of an Act of Parliament. That is how we operate and it is absolutely imperative to stick to that. It is how we have operated ever since we have been in the European Community—or, now, the European Union—and recognition of that in statute is perfectly reasonable. There are two amendments but, in particular, we have to decide whether the wording of Amendment 59, which makes the situation explicit with the words:
“By virtue of the European Communities Act”,
and does not include the specific phrase:
“It is only by virtue of an Act of Parliament”,
is clearer and more likely to avoid misinterpretation. I tend to favour Amendment 59 for that reason.
Lord Howe of Aberavon
My Lords, as I rise to support this debate, I sense a curious parallel of feelings. Quite recently I received in an e-mail, in the magic way that one does, a photograph of our eldest daughter holding in her arms her grandchild. That means that the noble Baroness, Lady Howe of Idlicote, and I have simultaneously become great-grandparents, and it is with that sort of sense that I now look back on this section of the European Communities Act 1972.
The remarkable thing is that from the outset it was understood that joining the European Community, as it then was, involved the arrival of a situation in which Community law was to be directly applied in this country. My noble friend Lord Howell knows that as clearly as I do because, as I have said before, we published a magnificent article written by Dennis Thompson entitled The Rome Treaty and the Law long before we were in a position to introduce legislation. The striking thing about that article was the same striking thing that we are discussing now—namely, the direct application in this country of existing law and law yet to be made in the European Community. For a more respectable origin than that, I go back to the White Paper produced by the Wilson Government in 1967 before we succeeded in getting membership of the Community. The White Paper says:
“‘If this country became a member of the European Communities it would be accepting Community law. By ‘Community law’ is meant the whole body of legal rights and obligations deriving from the Treaties or their instruments’”.
I am quoting from Hansard of 1972. I interposed, “So far, so good”, and then continued,
“it would be necessary to pass legislation giving the force of law to those provisions of the Treaties and Community instruments which are intended to take direct internal effect within the Member States”.—[Official Report, 17/2/72; cols. 650-51.]
That was foreshadowed in 1967.
Perhaps the most striking phrase in Section 2(1) of the 1972 Act is “without further enactment”. Therefore, the legislation that we were passing meant that laws made within the Community structure took direct application here as a result. There was, admittedly, some variation in that because that is how regulations took effect, whereas directives needed to be converted into English law, as they did not have direct application.
Therefore, there is no surprise about this provision. The only surprise that I have had has been the emergence of Clause 2 of the Bill. Speculation was rife throughout the country when we were preparing the Bill that became the European Communities Act about whether it was going to be a one-clause Bill, a 10-clause Bill, a 100-clause Bill or a 1,000-clause Bill. There was tremendous speculation along all those lines. In fact, this central provision was absolutely fundamental. It has been fundamental from the outset and has been part of our membership of the European Community. It is not a burden upon us; it is beneficial to us but within the framework of the European Union. To take the most obvious example, how would we have been able to ensure that the French withdrew their ban on BSE-tainted beef? The legislation that we were entitled to invoke to make that happen was legislation of this kind, particularly in France. It has always been fundamental and I really cannot see how one can question its importance and value. The question is how it is best expressed now in the light of the Bill before us.
Lord Kerr of Kinlochard
It is a pleasure to speak after the noble and learned Lord, Lord Howe of Aberavon. He speaks with great authority on a number of subjects, but particularly on the 1972 Act, of which he was the father.
The noble and learned Lord causes me a little difficulty. I welcome his support for the amendment in my name and that of the noble and learned Lord, Lord Mackay of Clashfern—which is not surprising, as I am rather in favour of my amendment, and I am glad that he should be rather in favour of it, too. My position is slightly different from that of the noble and learned Lord, Lord Mackay of Clashfern, who said that Clause 18 was unnecessarily vague. I believe that it is unnecessary and vague, and I would go for the amendment of the noble and learned Lord, Lord Howe of Aberavon, calling for the elimination of Clause 18 —the Armstrong-Howe amendment.
I am against the clause because I am against declaratory provisions in principle; it seems to me that they are actively undesirable. I quote, as an authority on the subject, the then Sir Geoffrey Howe, Solicitor-General in 1972, who rejected a declaratory provision of this kind in his Bill because it would be,
“futile … and … a hollow sham ... the position is that the ultimate supremacy of Parliament will not be affected”—
by the Bill—
“and it will not be affected because it cannot be affected”.—[Official Report, Commons, 5/6/1972; col. 627.]
I agree with the noble and learned Lord. I think that that is absolutely correct.
My preference is for there to be no Clause 18. However, I strongly agree with the noble and learned Lord, Lord Mackay of Clashfern, that the vagueness of the version of Clause 18 which is in the Bill is undesirable and, I would say, dangerous. I argued on Second Reading that it was potentially sinister. I hope that I was wrong about that but I have not yet heard an answer to it.
The Explanatory Notes are not much help. They attracted the particular ire of Jean-Claude Piris, the then head of the Council Legal Service, in the memorandum from which the Minister made a perhaps selective quotation. Piris said that the intention behind paragraph 104 of our Explanatory Notes “is not crystal clear”, which is a very elegant way of putting it. The Explanatory Notes say:
“The words ‘by virtue of an Act of Parliament’”—
not the 1972 Act—
“cover UK subordinate legislation made under Acts, and because of the particular context of this clause, also cover Acts and Measures of devolved legislatures in exercise of the powers conferred on them by the relevant UK primary legislation”.
I do not understand that. That all derives from the 1972 Act, which is all you need to cite. Because of the 1972 Act directly applicable law applies in this country. It applies even in areas where the authority has been devolved. The 1972 Act is still the fundamental basis for all this. If we have to have a Clause 18, it should refer clearly and precisely to the 1972 Act. I thought it potentially sinister because the loose phrase “an Act” could be construed as referring to future as well as past Acts. The reference to the 1972 Act is only implicit and not explicit as the clause stands.
On Second Reading I wondered whether it was some kind of a dog-whistle or signal to those who would like us to be able pick and choose, to apply or disapply particular pieces of EU law depending on whether we like them. Of course, the Government know that that is not possible. Their notes say that nothing affects the primacy of EU law. The addition to the text suggested by the noble Lord, Lord Hannay, would say that explicitly in the Act. Why go for such vague wording? Why have something that is open to the interpretation that it might cover future Acts? I withdraw the word “sinister” as that goes too far, but I will settle for the words of the noble and learned Lord, Lord Mackay—“unnecessarily vague”, and add unnecessary. I believe that Clause 18 is unnecessary and unnecessarily and dangerously vague.
Lord Willoughby de Broke
My Lords, I hesitate to introduce an inquiring note to this love-in. I do not know whether noble Lords have read the Commons European Scrutiny Committee report on this Bill, which has some interesting things to say on the principle of parliamentary sovereignty, having listened to a lot of legal evidence.
I draw the Minister’s attention to what that report says in paragraph 76, as it might help him. The committee states:
“We think it right that, should an Act of Parliament instruct the courts to disapply an aspect of European Union law, the courts should do so: this is not only consistent with the case law of the courts, but also with the doctrine of the legislative supremacy of Parliament; and also with the rule of law.
As I said on Second Reading:
“Encouragingly, the committee goes on to conclude that it is entirely within bounds for Parliament to ask judges to disapply any aspect of European Union law if that is the will of a democratically elected Parliament, even if—this is important—that were to lead to infringement proceedings in the EU Court of Justice”.—[Official Report, 22/3/11; Col. 699.]
There seems to be a divergence of opinion. Who is right—those who say EU law is supreme and should be within the Bill as the amendments suggest; or is the Commons European Union Scrutiny Committee right? It presumably has had legal advisers to instruct them as well. I suppose that we ought to take account of the fact that the French Government threw out the Romanian Gypsies, which must have been contrary to EU law. However, as far as I know, no infringement proceedings were taken. Even now, the French and Danes are ignoring the provisions of the Schengen agreement, which they signed, and are putting in place border posts. As is well known, the French stopped a train from Italy that contained Tunisian emigrants who were given some sort of EU passe-partout and were supposed to be allowed into France. The French police stopped the train and would not let them in. Denmark has reinstated full border controls to stop immigration. Therefore, the argument about the complete supremacy of EU law does not any longer hold. I will be interested to hear what the noble Lord or his advisers say about this in response to the amendments.
Lord Armstrong of Ilminster
My Lords, I intervene as one who is not learned in the law, unlike most previous speakers. I put down an amendment that Clause 18 should not stand part of the Bill. The noble and learned Lord, Lord Howe, referred to that and also put his name to the amendment.
I listened to those who are learned in the law dancing on the point of a legal pin. I shall take the matter away and look at what they said, because it seems to me—as it seemed when I tabled the amendment—that the clause is, as has been said, not just unnecessarily vague but unnecessary. As has also been said, it is declaratory in effect. However, the legal position is perfectly clear from Section 2 of the European Communities Act 1972. Like the noble and learned Lord, Lord Howe, I remember vividly the discussions that led up to that section. It has been buttressed by opinions in the Court of Appeal, if not in the Supreme Court—or House of Lords as it was—and I have not been convinced that we need Clause 18 in the Bill. I share the views of the noble Lord, Lord Kerr of Kinlochard, about the undesirability of declaratory provisions that do not change anything. Therefore, I have not yet been convinced that the law is uncertain or not absolutely clear already in this matter and needs to be reinforced or redeclared by the clause.
Lord Howe of Aberavon
Perhaps the noble Lord will allow me to intervene. I ought to have been more courteous in my portrayal of our partnership in a form that he would prefer to support. The reason that I was impelled in the Scottish direction was in order to underline the importance of the 1972 Act. The noble Lord, Lord Armstrong, is right to argue that we do not need the clause. However, it can do no harm to have the overriding importance of the 1972 Act being manifest, and to remove the ambiguity of the original Clause 18 and move beyond the removal of the offending clause to underline the proposition and lay it further beyond doubt. That is why I am inclined to prefer to move in that direction. However, I do so with apologies to my erstwhile partner.
Lord Armstrong of Ilminster
My Lords, I am grateful to the noble and learned Lord, Lord Howe, for saying that. I do not feel any differently about underlining something from how I do about declaring something that is already in existence, is supported by the judiciary and is not in question. Of course, I shall read the interventions of noble Lords who have spoken previously on these matters, but I remain to be convinced that we need this clause in the Bill.
Baroness Falkner of Margravine
My Lords, I will briefly address three issues. The first is whether we need this clause in the Bill. I completely agree with the noble Lords, Lord Armstrong and Lord Kerr, and with my noble and learned friend Lord Howe that the clause is probably redundant, not only because it is declaratory but because it does do what it sets out to do. I say to the noble Lord, Lord Willoughby de Broke, that if one reads carefully the House of Commons European Scrutiny Committee report, one sees very clearly that the committee does not think much of the clause. Paragraphs 82 to 86 of the report state:
“Clause 18 does not address the competing primacies of EU and national law … evidence suggests that clause 18 is not needed … if the legislative supremacy of Parliament is under threat, it is from judicial opinions in other areas of law … Clause 18 is not a sovereignty clause in the manner claimed by the Government, and the whole premise on which it is included in the Bill is, in our view, exaggerated”.
That is the view of the European Scrutiny Committee.
In case the Minister convinces the House that the clause has merits that are not instantly evident to most of us, I will say a word or two about Amendment 59. We have spent hours and days in Committee trying to gain clarity where there was ambiguity in the Bill, and a level of certainty where there was obfuscation. Therefore, it is odd to see that Clause 18 is as ambiguous as it is. I have a great deal of sympathy with my noble and learned friend, Lord Mackay of Clashfern, and my noble friend Lord Lester of Herne Hill, whose amendment seeks to replace an Act of Parliament with the European Communities Act 1972. This would be a welcome move.
As regards Amendment 57, I suggest that the noble Lord, Lord Hannay of Chiswick, looks at paragraph 61 of the House of Commons European Scrutiny Committee's report, in which Professor Tomkins says that it does not deal with the primacy issue, but only with the source issue, which is not really a question of sovereignty. On careful reading, the report leaves one almost as confused as when one started, because it seems to say everything to everybody, and seems to want to placate several constituencies in one go. It is also clear when one reads the evidence in the Notes that different legal experts offered different ideological interpretations of the Bill. Therefore, I would not die in the last ditch to defend the report. However, it is interesting that it is fairly clear that the sovereignty issue is not addressed by the Bill.
In conclusion, I find it rather peculiar that paragraph 115 of the Explanatory Notes states:
“This clause has been included in the Bill to address concerns that the doctrine of Parliamentary sovereignty may in the future be eroded by decisions of the courts”.
This is slightly curious. Perhaps the Minister will give us clarification.
Lord Lea of Crondall
My Lords, it might be convenient if I spoke to Amendment 58. It is not in this group, but it is very much part of the balancing act with Clause 18. My purpose in tabling Amendment 58 is to persuade the Government that it would be helpful to have a clause to balance Clause 18. Both the noble Lord, Lord Armstrong of Ilminster, and I would be happier if Clause 18 was not there, so that there would be no need for what one might call a balancing affirmation. However, I suspect that if we wind up with Clause 18, the majority of the House would be happy to have it along with a balancing affirmation. I am not going back into the theology of declaratory clauses, although in different ways, I half infer from a range of speeches, including, to some extent, that of the noble and learned Lord, Lord Mackay, that declaratory clauses are not without value if there is a balance.
I hope the Government will not look askance at the idea that I am trying to do them a favour. I know that the noble Lord, Lord Howell, is an honourable man, and I hope I am, and I think this would be helpful. It would avoid the impression that this Bill is simply about giving credence to the idea that everything that comes from Brussels is horrible and that we have to watch like a hawk and have referendums in various places. This is the tone of the Bill. The noble Lord, Lord Howell, made an excellent statement—I am reflecting what was said by the noble Lord, Lord Kerr, and others—but it is hardly the picture that is coming across of the role of the European Union in this Bill.
I have taken the liberty of writing out the major pieces of legislation that constitute the framework of where we are in Europe. It is quite significant. I have not even put in all the jargon of the acronyms—TEU and so on. We have the European Communities Act 1972, the amending treaties and the Single European Act 1987. We all remember that these were not little jigsaw pieces. We have the Maastricht treaty of 1992, the Amsterdam treaty of 1997, the Nice treaty of 2001 and the treaty of Lisbon of 2007, which were concluded in the context of the European Union having a dynamic of development with new EU competences side by side with the successive enlargements of the European Union and new competences in fields agreed to be necessary for Europeans to act together. If we are in the business of declaratory clauses, I think that would be a good one and might reflect the views of the majority of the Committee if Clause 18 remains in the Bill. It needs balance.
The only other point I shall make is that we have here an affirmation of what the Government claim to be their position. The Minister says that this is the Government’s position and that far from trying to introduce an opt-out from Lisbon via the back door of referendums and so on, they accept responsibilities from the framework of all the signatory nations in implementing this framework and that they will look pragmatically at any new proposals under these treaties in the usual way through the Council, the Parliament and the Commission.
I am leaning over backwards. I hope it is not a posture that looks too ridiculous, but if you are going to have Clause 18, a balancing affirmation like this would be very desirable.
Lord Dykes
My Lords, I shall be brief. I probably do not have sufficient experience of Committee stages in this House to know whether any noble Lord can introduce their own amendment into a discussion when it has not already been selected. The amendment tabled by the noble Lord, Lord Lea, is selected for the next debate on the Marshalled List.
Lord Dykes
It can be done? Thank you for the answer. I was not quite sure.
I am very glad that the noble Lord, Lord Lea, brought his points in because they reinforce the need for the basic underlying enthusiasm for membership of the European Union to be reiterated again and again. The speech made by the noble Lord, Lord Howell, at the end of the previous group emphasised the same point, so to that extent one is very grateful indeed. Coming back to the previous discussion on Amendments 57 and 59, like the noble Lord, Lord Kerr of Kinlochard, I was not quite sure whether the description should veer between vague and unnecessary or go back to sinister. If we listen to the words of the noble Lord, Lord Willoughby de Broke, one might say that it should go back to being sinister, but I am glad to suggest to the Committee—I hope I am not being discourteous—that that is still a minority view of the worth of this country’s membership of the European Union. I always listen with great respect to the things that he espouses when he makes his arguments, even if I do not agree. At the moment, we are still with vague and unnecessary, and that is the crux of the problem. I express enormous appreciation for the very wise words of my noble and learned friends Lord Howe and Lord Mackay of Clashfern.
Returning to my noble and learned friend Lord Howe, one remembers with great affection the riveting extracts that one can still read in Hansard from the debates when the then new Conservative Government were promulgating the legislation. As Solicitor-General, he had the opportunity to re-educate Harold Wilson about the realities of the 1972 Act in general and, specifically, about Section 2, which he did with great skill, I believe. It came back to the reality, as George Brown reminded us continually before and after these events, that he could never quite persuade Harold Wilson to be a really genuinely deep, good European, as he was. It was the best they could do in the circumstances, and the rest of it flowed from that.
The report by the Constitution Committee of the House of Lords, which was published in March, has been much quoted in these debates. It referred to these matters, as my noble friend Lady Falkner said today. The scrutiny committee’s report and this report are very relevant in this context. The very specific amendment tabled by the noble and learned Lord, Lord Mackay of Clashfern, would remove the original text of Clause 18 and insert a new clause that would reassure us and dispel the doubts that might arise, such as the one to which paragraph 59 on page 16 of the House of Lords Constitution Committee report refers when it talks about this particular dilemma:
“An argument raised in evidence to the European Scrutiny Committee is that, by seeking to shield the principle of parliamentary sovereignty only in the context of EU law, clause 18 may inadvertently invite questions in the courts about why Parliament did not take the opportunity to seek to reinforce its sovereignty more generally”.
Paragraph 60 of that report concludes in dark print:
“We are confident that if parliamentary sovereignty were to be questioned in any other context, the existence of clause 18 would not prevent the courts from upholding the well understood and orthodox position”.
One may relate that directly to paragraph 118 on page 27 of the Explanatory Memorandum and the Government’s absolute reiteration of the fundamental principle in that lengthy text on Clause 18, which, they say,
“does not alter the existing relationship between EU law and UK domestic law; in particular, the principle of the primacy of EU law. The principle of the primacy of EU law was established in the jurisprudence of the European Court of Justice before the accession of the United Kingdom to the European Communities”.
They then mention the cases that were referred to the ECJ that bore that out.
Amendment 57 is in my name and that of the noble Lord, Lord Hannay, and in the names of two other noble Lords, one of whom is unwell tonight and cannot be present—the noble Lord, Lord Tomlinson, who has given his apologies, I believe. The great beauty of Amendment 57 is that it relates back very neatly to the very text of paragraph 118, which I have just quoted, and to the actual words of the insertion suggested by the noble Lord, Lord Hannay, on page 12, line 9, at the end of Clause 18, for which we thank him. The Government’s magisterial decision will therefore surely be to accept the amendment in the name of the noble and learned Lord, Lord Mackay, with its much more precise and unshakeable reference to the 1972 Act and his inserted words that underline the fact that EU law has primacy and that would therefore dispel the doubts and restore the Government’s authority on European Union matters.
Lord Stoddart of Swindon
My Lords, I oppose all the amendments, and indeed the clause itself, because of a simple proposition that people will understand. Like the noble Lord, Lord Armstrong of Ilminster, I cannot claim to have any legal background in these matters. I do know, however, that during the whole of my political life, which has been a very long one, I and everyone else understands that the British constitution is based on the proposition, and indeed the law, that one Parliament cannot bind its successor. That you must hold to. It is indivisible, and once you start qualifying it you undermine the whole concept. That is why I oppose all the amendments and Clause 18, because they all seek to qualify that absolute part of our constitution.
That is such a simple proposition that all ordinary people understand what it means: that Parliament is supreme, and that what Parliament does can be undone. It is absolutely true that things can be sorted out by repealing the 1972 Act. The only problem so often is that people go on to say that that is inconceivable, but it is not. There are circumstances in which this country may wish, and indeed may have the duty, to withdraw from the Community. I know that that sounds as though it is out in the clouds. Nevertheless, there are circumstances in which it would be desirable, and perhaps essential, not to be bound by the European Communities Act, and it can be repealed. That is the essence that we have to stick to: the fact that that Act is simply an Act of Parliament that can be repealed by any Parliament in the future or in the present. I agree with those who say that letting go of that could be a dangerous course.
Lord Deben
My Lords, I have not been able to support the Government at all times during the passage of this Bill. I hope therefore to rectify that, at least in part, on this occasion. It seems to me that it is a mistake to say that at all times a declaratory statement is unhelpful. Clearly, there is a need for some declaration, having heard the speech of the noble Lord, Lord Willoughby de Broke, who clearly believes that what would be declared would not be right. Therefore, declaring it is not merely otiose. In the present world, it is occasionally valuable to make a statement which may for some be a statement of the obvious but clearly for some it is not. Therefore, I am happy for there to be a declaration.
My problem is not about the need for a declaration but in the wording of Clause 18. That problem arises from two directions. First, I do not believe that it is safe to have anything which is in the slightest bit ambiguous. That is not because I have the same suspicion that the noble Lord, Lord Kerr, has of the Government’s intentions. I have been reassured on that by my noble friend the Minister. It is simply because there are people in this country who will do anything possible to try to drive in wedges where there is really no hole to drive them into. Therefore, one should just make sure that one does not provide a means for them driving. Let us be careful about ambiguity.
Secondly, I wish that we would talk about these things while remembering the other countries in the European Union. There is a tendency to feel that somehow it would be perfectly all right for Britain to decide that it liked “this” Act but not “that” one. But the moment that the French, the Spanish, the Portuguese or the Slovenians do that, we get on our high horse immediately. That interesting daily newspaper, the Daily Mail, spends most of its time doing precisely that and saying that someone is being absolutely unacceptable because they are not agreeing, supporting or doing what they should under the European Union. But the moment it is convenient to complain about Britain, somehow Britain is in a different category. I do not think it harms us to be reminded of the enormous value that we have in the fact that all members of the European Union are bound by the European treaties.
Earlier, a noble Lord mentioned BSE. I do not think that anyone has had more experience of BSE than me or that anyone has been more photographed as regards BSE. I say to your Lordships’ House that the ability to insist that countries could not use excuses for restraining trade was a crucial part of this country’s defence against what turned out to be a situation which could have damaged us in an unfair and unreasonable way. That is only one example but there are dozens. Anyone with any ministerial experience knows that, within the context of the European Union, issues are pressed one way or another: Denmark may make a statement about something and the French may be difficult about something else. We are very difficult about a lot of things, which is part of the give and take of a community in which we are all members and partners. It is the same give and take that you have in any Cabinet. Sometimes there is more take than give, which has been our experience of Britain’s attitude to the European Union in my view. We have often failed to give enough and, therefore, we have found ourselves looking as though we are more concerned with the take.
I have a considerable desire to remind the House of the advantages of this clause, as amended by the amendment of my noble and learned friend Lord Mackay, and supported by my noble and learned friend Lord Howe of Aberavon. Clarity is a valuable addition to what is not an unnecessary clause but something which would be well worth having.
I end by making one comment which should be mentioned in this debate. One of the problems with our system—I support the system enormously—is that we produce legislation in our Houses of Parliament to carry into law the decisions that are made by us all around the table in the European Union. I make that point because it is not Brussels which makes those decisions. We make them with others in Brussels of our own volition. Then we carry it into law. The real concern is that, unlike many other European countries, we have a wonderful opportunity to make the whole thing more complicated. We can add this and that. “Better not leave that out”, and, “Have they thought about this possibility?”, says the civil servant. When you look to see where the gold-plating comes from, you can see that it comes from our system. I am in favour of us doing this, but I would not like to have spoken to this amendment without reminding the Committee that every time we do it, we ought to be careful. Perhaps we would do better to keep to the simplicity of much of European law rather than elaborate it for the benefit of the curious mind of the bureaucracy of Britain.
I hope that the Government will find it possible to accept the amendment. It cannot mean anything different from what they intend to mean in their Clause 18. However, if Clause 18 does mean something different, the noble Lord, Lord Kerr, is right to be suspicious. If it means the same, surely it would be better to take the wise advice of noble Lords who are learned in the law and accept that the formulation put forward by my noble and learned friend Lord Mackay, my noble friend Lord Lester and the noble Lords, Lord Kerr and Lord Dubs, is a better way of achieving something that I believe is worth while.
Lord Pearson of Rannoch
My Lords, I shall speak briefly to underline what my noble friend Lord Stoddart has said and to put it as a precise question for the Minister. The only point on which I do not quite agree with the noble Lord, Lord Stoddart, is that I think that Clause 18 as it stands is better than nothing, and no doubt especially once the Minister has explained it in a few minutes’ time. But I will speak against Amendments 57, 58 and 59, and particularly Amendment 59 for the reason that it appears to get rid of Clause 18.
My question for the Minister is this: does he actually agree with the noble Lord, Lord Stoddart, that one parliament cannot bind another, even in the whole matter of our EU membership? Will he confirm that if Parliament—your Lordships’ House and the House of Commons—repeals the original 1972 Act, particularly Section 2 with which I include all the amendments that have been added, those arising from the Single European Act 1986, Maastricht, Amsterdam, Nice and so on, are we then in effect out of the European Union? Will we no longer be subject to the diktats of Brussels and the jurisdiction of the Luxembourg court? Of course I understand that a lot of British law did come from Brussels and is sewn into our own law. I also understand that that can be repealed at our leisure as we go forward. However, I would be grateful if the Minister would confirm that Clause 18 means that it is only if we repeal the 1972 Act that European law would no longer take precedence over the law of this country, and that that can be reversed by repealing the Act?
Lord Triesman
My Lords, what has come through in the debate is that it is hard to see a strong purpose for Clause 18. It is not the best drafted clause I have ever read in legislation, and I understand why—or at least I think I understand why, which I will come to in a moment. But it is also true to say that the Explanatory Notes to the Bill do the clause no favours. They do not set out why it is compelling or why any of us who think that it is obscurely drafted should feel that we can put our hand on our heart and say that we know exactly why it is written as it is. I certainly do not feel that way. I am not a lawyer. I am not learned in the law, which is the expression that has gone around the Chamber. I am a humble mathematician and I am trying hard to understand the considerable obscurities of law when compared with mathematics.
It is important to ask, as did the noble Lord, Lord Deben, only a short while ago, what the clause as it is written is for—I shall come on to the alternatives in a moment. Everybody agrees that it is declaratory in its reference to the 1972 Act. It looks as though it is attempting to balance a number of arguments which plainly have gone on in the background between those who are uncomfortable with the idea that Europe has any bearing on the way we conduct our legal lives, and may continue to do so, and those who recognise that that is a fixed reality because of the processes that the noble and learned Lord, Lord Howe, described in a very helpful speech. It is hard to understand the necessity of Clause 18 and it is reasonable to say that, as drafted, it is open to very wide interpretation. As a couple of noble Lords have said, that would probably make it open to judicial review.
I find myself in strong agreement—I hope that it will do her no harm—with the noble Baroness, Lady Falkner, who said that the House of Commons European Scrutiny Committee’s report gave not the most glowing reference which anybody has written to a piece of legislation. The report is written with the niceness that parliamentarians occasionally reserve for a description of something they think is very poor, but, none the less, it says, in terms pretty much, that it is very poor. The Government in their response almost give up the ghost after a very short period of trying to defend it, because there is no certainty, I think, even on their part, that this was the right way to do it.
I cannot see the point of the clause or that it is at all helpful. I have real sympathy with the point made by the noble Lord, Lord Stoddart, that parliaments cannot bind their successors. That view at least, about the character of parliamentary Government, must be common ground among us. In those circumstances, it must be common ground that Parliament is supreme, and it must be common ground that, should Parliament wish to stand down the 1972 Act, it would be within its competence to do so. It is extremely unlikely that it would, but that is neither here nor there in the terms in which the noble Lord put that proposition to the Committee. The supremacy argument is very powerful. One of the reasons that I have great difficulty with much of this legislation is that it seems to reduce the role of Parliament and the supremacy that it should enjoy. The points that have been made ad nauseam in your Lordships' House about multiple referenda do nothing for the objective of propping up the supremacy of Parliament, but the general proposition made by the noble Lord, Lord Stoddart, must be right.
If the Government feel that it is essential to have in place a clause that is declaratory, it might as well have the following characteristics. First, it should be so clear that even those of us who are not learned in the law understand it. Secondly, it should be sufficiently clear that it does not give rise to frequent legal challenge. Thirdly, it should make reference to—if I may put it this way—the core code that is involved in European legislation and not gloss over that. For those reasons, Amendment 57 offers greater clarification. It may well have been written with people who are used to dealing with sovereignty issues somewhere in the background, but it is none the less a straightforward clarification. Beyond that, Amendment 59 does that by a very direct reference to what I described as the core code—to the central proposition about why the status of our relationship to Europe is as it is.
If we did not have this clause at all, which would be my preference, much of what I said in the past few moments would not be particularly relevant. But if there is to be a declaratory cause it should at least have the characteristics that the noble and learned Lord, Lord Mackay, introduced in his speech this evening. It is impossible to misinterpret or misunderstand it. That has great merit and I hope that he will not mind my saying so from the opposition Benches. It does not alter my view that, as the noble Lord, Lord Armstrong, said, the clause is not really necessary, but Amendment 59 has a convincing pedigree and that is what recommends it to me.
Lord Howell of Guildford
My Lords, I will look first at Amendments 57 and 58 and then come to the vagueness charges embodied in Amendment 59. I will seek to explain why the words are in the Bill. Whether the explanation is acceptable to the Committee is another matter at the moment. I will explain that the words that are in the Bill work the other way: they add to the precision of the legislation rather than to the vagueness of it. I will come to that in a moment.
As noble Lords have recognised, Amendment 57 would include on the face of the Bill that Clause 18 does not alter the rights and obligations that the UK signed up to on becoming a member state of the European Union. It also seeks to legislate explicitly that Clause 18 does not alter the primacy of EU law. I am grateful to your Lordships for drawing attention to these two important principles: that the EU law has primacy and that the UK must honour its obligations as an EU member state. I assure the Committee and particularly the noble Lord, Lord Lea, with his Amendment 58, that the Bill supports both those principles. Indeed, the Bill has to support them. It is not a question of choice. The Bill has to support those principles because to do otherwise would put us in breach of our obligations as EU members.
I have serious concerns about Amendment 57. It does not reflect accurately the legal position regarding the UK's membership of the European Union. I say that because the UK follows the dualist constitutional model. Giving treaties effect in the UK is always a two-stage process. That did not seem to feature in the debate that we just had. The first stage—the signing of the treaty during which the UK may take on rights and obligations—is governed by public international law. The rights and obligations assumed by the UK on becoming an EU member state are governed by public, international law rather than domestic law. Those rights and obligations are binding on the United Kingdom under international law irrespective of the existence of the European Communities Act or any other Act of Parliament and will continue to be so as long as the UK continues to be a member state of the European Union. It follows that the EU Bill does not and cannot change the rights and obligations assumed by the United Kingdom on becoming a member of the European Union. It would be misleading to suggest in this or in any Bill that any Act of Parliament could do this. Such a change could only be done by the UK renegotiating the terms of its membership of the European Union.
I say to the noble Lord, Lord Pearson, that Governments can of course seek to bind future Governments. Most Governments whom I know, and whom many of your Lordships know, have sought to bring in great legislation. Let us take, for instance, some of the privatisation provisions under the earlier Thatcher Government. Our hope was that those would endure. We hoped that a future Government would feel bound by privatisation visions, not renationalise the whole of the then privatised sector—indeed, our hopes were in fact borne out. However, a Parliament cannot bind a future Parliament; that is a completely different proposition. It is of course possible that a future Parliament could repeal the 1972 Act although, interestingly, that would not remove the United Kingdom from the European Union. It could only be done by negotiation through Article 50 of the Treaty on European Union but those things are possible. Parliament can do anything and is supreme.
Noble Lords have asked what the point of Clause 18 is and why it is in the Bill. It confirms that the second stage of the dualist system, whereby the rights and obligations taken on by the UK are given effect in UK law and can therefore be enforced through the UK courts, must always be done by an Act of Parliament. Any suggestion that EU law constitutes a new, higher autonomous legal order and has or can develop into part of the UK’s legal system independent of statute are thereby refuted. That is very important indeed. Noble Lords may say: “So what? That is what the courts have always upheld”. However, as the noble Lord, Lord Williamson, acutely observed, it has been challenged. I think that the prosecution in the metric martyrs case tried to float the idea in the counter case that EU law had some autonomous existence independent of our own statute law. It has been raised and to say that it is not in question is simply factually wrong when people have questioned it.
It is therefore the view of the coalition that it is right and valuable that this declaratory clause should be in the Bill. Even if it can be said that the courts have so far upheld that position, as my noble and learned friend Lord Howe is well aware—having been, as he said, the father, godfather and grandfather of the 1972 Act and much of the legislation that flows from it—and as I know and we all know, these matters are challenged. They are, from time to time, challenged by learned legal minds and there is dispute about them. Far from this clause being unnecessary, as the noble Lord, Lord Armstrong, ventured to argue with great clarity, I maintain that on the basis of our own experience—what we hear, read and see in the public debate—it is necessary that it should be in place. That is my view on Clause 57 but I will obviously think hard about the views that were put forward by extremely acute and expert minds on this matter. However, I said that I would set out how the Government see the matter and that is how we see it.
Amendment 59 was a very important part of the argument put forward by a number of noble Lords, including my noble and learned friend Lord Mackay of Clashfern. Let me explain why we have in there “an Act of Parliament” rather than “by virtue of the European Communities Act 1972”. I reassure my noble and learned friend that we have thought about this very carefully because it is a complex balance of issues and we wanted very much to get it right.
The Government accept that Section 2(1) of the European Communities Act is commonly identified as the primary way in which EU law takes effect in the UK, but unfortunately that is not quite right. There are other Acts which can be interpreted as giving effect to EU law within the UK; for example, there are some provisions of the Scotland Act 1998, the Government of Wales Act 2006, the Northern Ireland Act 1998—and I believe there were other earlier Northern Ireland Acts as well, as I remember taking part in some myself. Then there are the Enterprise Act 2002 and the Equality Act 2006. They all put Ministers under an obligation to act in accordance with EU law without reference to the European Communities Act—and there may be other such Acts in future. Who knows? We have to prepare for these things. It was to address this concern and those facts that Clause 18 was deliberately drafted to refer to Acts in the plural, or an Act of Parliament, rather than solely referring to Section 2(1) of the European Communities Act 1972.
I reassure my noble friends that having carefully thought about it and come down on that side of the argument, which we believe to be the comprehensive and effective one, there was no sinister purpose. It was simply a design to ensure that all the means by which directly effective or applicable EU law could be given an effect in the UK legal order are addressed. That is the raison d’etre and the underlying argument why the clause is there, why it is necessary and why it is so worded.
I would like to say a final word, or semi-final word—or penultimate word—about the point made by the noble Lord, Lord Kerr, at Second Reading, which he touched on again today. He queried what on earth paragraph 113 was doing in the Explanatory Notes, which refers to the,
“UK subordinate legislation … and … Acts and Measures of the devolved legislatures”.
The answer is that EU law can be given effect in the UK legal order, not only directly through primary legislation but through means of delegated legislation adopted under primary legislation. The obvious example of this is the secondary legislation giving effect to EU measures adopted under Section 2(2) of the European Communities Act, and the reference in Clause 18 to,
“by virtue of an Act of Parliament”,
covers that aspect.
I said that was my penultimate comment. My noble and extremely learned friend Lord Howe did that dangerous thing of mentioning the Commonwealth, which has not really come into this Bill at all. I cannot resist making the point that if we are to promote the interests of this nation as a positive member of the European Union, and to do so fit in to this extraordinary new world in which all the wealth and accumulated savings and first the economic and now the political power have shifted to a degree away from the Atlantic nations and the West to the new emerging worlds of Asia, Africa and Latin America, these are the new networks in which we must also involve ourselves. We must work to ensure that our European membership enables us to take our full part in these things to reinforce each other.
I had to get that in, only because my noble and learned friend tempted me. It has very little to do with the amendment, but I think that I have explained why the two points raised by noble Lords with great learning and authority fit in to the fact that the clause is necessary; it may be declaratory but it does a job, and that is why it is there, and it is drafted as an Act of Parliament rather than the European Communities Act 1972 but deliberately and carefully.
I think I said a word about the amendment intended to help proposed by the noble Lord, Lord Lea. I assure him that there is no way in which Clause 18 alters the commitment or position of the primacy of European Union law, which in turn rests as it always must on the will and Act of Parliament supported by the courts. That is why I would ask noble Lords and the noble and learned Lords to consider what they have put forward and withdraw the amendment.
Lord Pearson of Rannoch
My Lords, I would like to spend a little time ruminating on something that the Minister said. He said that if this Parliament repealed the 1972 Act and the relevant parts of the other Acts that he mentioned, we would still be bound by Article 50 of the Lisbon treaty. Article 50 is of course the laborious and expensive process that Lisbon allows for a member state to leave the European Union over a period of some two years. Why is that so? Surely if we have repealed the 1972 Act, have we not repealed everything that flows from it, including Article 50. Could we not then get out much quicker and rather more cheaply?
Lord Howell of Guildford
I am proceeding on this subject on the close advice of lawyers. I am advised that even if we repealed the Act, under international law we would remain a member of the European Union until such time as we negotiated our way out of it under Article 50. That is the point that I was making.
Lord Hannay of Chiswick
The debate that we have had over the past hour and a half has been valuable. I imagine that it has not escaped the Minister that not one person has spoken in support of the Government’s draft—not one. There have been different points of view about what is wrong with it and how to remedy it but there has been no support apart from that from the Members of UKIP, whose embrace I suspect would be mildly toxic to the Government since their sole objective is to operate the provision that would withdraw us from the European Union.
The noble Lord, Lord Willoughby de Broke, produced a lot of totally irrelevant analogies with the action taken by the French last year on the Roma, with the Danes and so on. They were all taken by executive action, not by legislation. He was proposing that Parliament should actually disallow a ruling by the European Court. If we did that, it would not be infraction proceedings that we would be getting; we would be on to the road out, which is exactly what he would like to achieve.
Lord Willoughby de Broke
I was not the one proposing those Acts of Parliament. I was simply quoting directly what the European Scrutiny Committee in the Commons stated at paragraph 76. If the noble Lord, Lord Hannay, would care to read that paragraph, he would be better informed.
Lord Hannay of Chiswick
I have read that report, though it gave me a pain between the ears to do so. The noble Lord will understand that if he quotes in an approving manner from a report from another place, it is assumed that he shares that view. I am merely pointing out that the parallels that he made with the Danes and the French are very inexact and that the sort of action proposed in the quotation he gave would in fact lead to us leaving the EU, which is a perfectly possible eventuality, one that I know he and his colleague in UKIP strongly desire. I am merely suggesting that that is not the desire of the government Front Bench—they have made that clear—and that, apart from those two interventions, the Government’s draft of Clause 18 has had no support at all.
What remains is a rich banquet of alternatives to which I hope the Government will give serious consideration between now and Report and will choose the one most likely to gain a majority in this House and in another place. As far as the first is concerned, that looks unlikely to be the one that is on the table in the name of the Government at the moment. Since the noble Lord has clarified the Government’s intentions very helpfully, the Government could easily accept any of the following three options: losing Clause 18; accepting the clause that has been drafted by the noble and learned Lord, Lord Mackay of Clashfern; or making the addition that I have proposed but which leaves their own draft intact. I hope that the Government will give serious consideration to this.
Lord Lea of Crondall
“( ) This section does not affect the United Kingdom’s commitments set out in the European Communities Act 1972 and subsequent Acts enacting subsequent amending treaties (the Single Market Act (1987), the Maastricht Treaty on European Union (1992), the Amsterdam Treaty (1997), the Nice Treaty (2001) and the Treaty of Lisbon (2007)), and the treaties concluded to enable successive enlargements of the European Union as part of the dynamics of EU development, with new EU competences in fields agreed to be necessary for Europeans to act together.”
Lord Lea of Crondall
I will make just one point. Will the noble Lord, Lord Howell, include in his consideration that there is a demand for a rewrite of Clause 18? The noble Lord has said that the Government respect all of the seven statutes that we are committed to implementing in the United Kingdom. To use the vernacular, you could have fooled me. In the tone of the Bill there is very little that acknowledges the weight of this great structure that has been prepared as a framework. That is the ghost at the feast at the moment. No other country in the EU is raising the bar as high as we are with all these referendum arrangements. It would be very valuable, to say the least, if something more positive could be incorporated into this declaratory clause.
Lord Liddle
I will say something on this, prompted by the Minister’s speech, just to oppose that Clause 18 should stand part of the Bill. We have had an excellent discussion—civilised, expert, well argued and showing the real quality of the House of Lords. The noble Lord, Lord Howell, at the end did his best to explain why the Government think that the inclusion of this clause is necessary. I am no lawyer—one comes to these matters as a bird of little brain—but we will have to give what he said in his speech a lot of thought over the Recess. I am glad that we have the Recess to think about it.
The fundamental question at the back of my mind on this clause—and at the back of the minds of many Members who have moved amendments to it—which the Government have failed to answer, is: why is this clause required now? We have been members of the European Union satisfactorily for nearly 40 years. Why do we need to introduce this clause at this stage? How will it improve our relationship with the EU? I have not come across a good, objective answer to that question. I am sorry to lower the tone and talk about crude politics but I think the reason why this clause is included is because it is intended to satisfy and appease some of the worst elements—from our point of view—of feeling about Europe in this country.
I have always believed in something that I call the Dora Gaitskell principle of politics. This is based on the story that when Hugh Gaitskell made his great “thousand years of British history” speech at the Labour conference in 1962, and it was a tremendous success and the hall rose—the noble Baroness, Lady Williams, was probably there—Dora turned to Hugh and said, “But Hugh, all the wrong people are cheering”. I wonder who is cheering this sovereignty clause. Why are the Government doing this? The whole idea of introducing some sort of sovereignty clause goes back a long way. I was not at the Labour conference in 1962 but I had to listen to the comments of the Common Market Safeguards Campaign and the Labour Common Market Safeguards Committee in the 1970s. I remember Peter Shore, for whom I had the greatest respect as an individual, strongly putting forward the argument that we should renege on Section 2 of the European Communities Act. For the past 20 years we have had the redoubtable and indefatigable William Cash making these kind of arguments in the other place.
The Government have to explain to us why, after 40 years of membership, we need this clause now. My fear is that anything we do in this area will be misinterpreted and will be an invitation to the courts to change what has been a relatively clear position up to now. That is why we must come back to this issue with all seriousness on Report. With that, I withdraw my opposition at this stage to Clause 18 standing part of the Bill.
Lord Howell of Guildford
My Lords, the noble Lord has touched on a number of the issues that we have already covered. He asks yet again why the clause is there. The noble Lord, Lord Hannay, slightly mocks the coalition, and mocks me, by suggesting that this all turns on the prosecution’s line in a particular case. It does not, of course; it turns on a very wide number of views. I do not know whether he has studied all the academic views submitted to the scrutiny committee in the other place, but they were substantial. They reflect a substantial body of thought which asserts that EU law is autonomous and independent. This measure is in line with the practice of other member states. Germany’s Federal Constitutional Court, the Bundesverfassungsgericht, ruled in 1993 in the case of Brunner v the European Union Treaty—this was in the Common Market Law Reports 57—that Community law applies in Germany only because laws passed by the German Parliament say that it does. Therefore, although the noble Lord, Lord Lea of Crondall, put it extremely kindly when he said that we are raising the bar above others, I am not sure that that is so. In some cases, we are actually catching up with others. We are simply moving to a position of declaring that the will of Parliament is supreme in all our laws in this kingdom, but that Parliament has willed that EU law should have supremacy. That is and has been the position since we passed the 1972 Act all those long nights and years ago, as my noble and learned friend Lord Howe reminded us.
There it is. I have clearly listened carefully to this excellent and learned debate. I owed it to the House and to your Lordships to explain why the coalition reached the view that a clause of this kind, after careful consideration, should be worded in this way. That is particularly important because I hope that the clause now carries a little more support from my noble and learned friend Lord Mackay of Clashfern, the noble Lord, Lord Armstrong, and others. I tried to explain the position as clearly as possible. We have a good and valuable case that reinforces our stance vis-à-vis Europe, which is, as I said, positive and constructive in the dangerous and fluid world where new and positive thoughts are urgently required.